Opinion
(December Term, 1830.)
1. It is the duty of the Clerk of the County Court to publish the lists of taxables and insolvents, in the mode prescribed by the act of 1786 (Rev., ch. 255), in the state in which they are returned to him, notwithstanding they may be incomplete.
2. The act of 1786 is not repealed by the acts of 1814 and 1817 (Rev., ch. 872 and 945), authorizing the County Courts to assess county and poor taxes.
DEBT brought against the defendant, who is the clerk of the County Court of Robeson, for the penalty imposed by the act of 1786 (Rev., ch. 255), for not setting up in some conspicuous part of the courthouse an alphabetical list of the taxables, and for not advertising the list of insolvents returned to August term, 1826, of the County (525) Court.
No counsel for either party.
FROM ROBESON.
The plaintiff having made out a prima facie case, the defendant proved that one of the justices, who had been appointed at May term, 1826, to take the lists of taxables, had made no return, and that the sheriff had also omitted to make out his list of insolvents; it was insisted for him that as the returns were not complete, it was not his duty to put up the defective lists which were returned. It was also contended in his defense that the acts of 1814 and 1817 (Rev., ch. 872 and 945), had rendered it impossible for the clerk to perform the duties required by the act of 1786, and were a repeal of it. His Honor, Judge NORWOOD, being of this opinion, the jury, under his instructions, returned a verdict for the defendant, and the plaintiff appealed.
By the act of 1786 (Rev., ch. 255), it is made the duty of the clerk of the County Court at the next Court after the lists of taxable property shall be returned by the judges appointed to take them, to set up in the court house an alphabetical list of the taxables and taxable property, and for not performing the duties required by this act a penalty of fifty pounds is imposed, to be recovered by any person who will sue for it. Before this duty can be performed by the clerk, it is necessary that lists of taxation should be returned in due time by the justices. It is also necessary that the sheriff should make a return of insolvents. But if the sheriffs fail to make such returns, or if the justices omit making due return of the lists of taxables and taxable property which they were authorized and required to take, it would be impossible for the clerk to perform the duty required of him. But if one of the justices, as in the present case, (526) omits making due return of the lists which had been assigned to him to take, to be sure the clerk cannot supply such omission; but that is no reason why he should not perform his duty in setting up for public inspection such lists as have been returned by other justices.
By the act of 1798 (Rev., ch. 506), it is made the duty of the clerk to add to each person's taxable property the amount of tax for which he is liable; but for the non-performance of this duty, the act imposes no penalty. The penalty is confined to the duties imposed by the act of 1786. By the act of 1814 (Rev., ch. 872, sec. 18), the County Courts are directed at the first Court which shall happen after the first day of January in every year, to lay a tax for defraying the county charges. It would be impossible that this tax should be inserted in the lists of taxation, which, by the act of 1786, were directed to be set up. Of course there can be no penalty incurred on that account. The same remark may be made as to the act of 1817. (Rev., ch. 945.) I cannot bring my mind to believe that these acts, or any one of them, is a repeal of the act of 1786.
In fact, this suit is brought for the non-performance of the clerk's duties, as imposed by the act of 1786, but not for the non-performance of the duties imposed by any of the subsequent acts brought in to view in this case. I think the penalty was incurred by not putting up such lists as were returned under the act of 1786. But it could not be incurred by not putting up such list as was not returned. For this he was in no fault.
PER CURIAM. New trial.
(527)